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On September 23, 2009, the EEOC published proposed rules regarding disabilities in the Federal Register.

These new rules change the definition of a disability under the ADAAA, the ADA Amendments Act of 2008, which went into effect on January 1, 2009. That law requires the EEOC to interpret the term “disability” broadly.

The law returns the meaning to disability to that enforced by the EEOC in 1990 soon after the ADA was passed. Over time, the courts have continually eroded the definition of disability under the law, requiring more proof of more severe impairments.

Some of the notable changes that employers need to be aware of:

An impairment that substantially limits a major bodily function is sufficient to constitute a disability. Under the old regulations, a condition like cancer or AIDS did not in and of itself, constitute an impairment. The employee had to show that he or she was limited in major life functions by the condition. Under the new regulations, such a condition in and of itself is a disability.

Mitigating measures must be disregarded. (more…)

The federal EEOC just published new regulations that redefine disability under the Americans with Disabilities Act.

The new regulations specifically address the definition of disability within the ADAAA of 2008, which has been in effect since January 1, 2009.

Under the new rule, certain impairments will create a presumption of disability. These impairments include epilepsy, diabetes, multiple sclerosis, developmental disabilities, deafness, blindness, use of a wheelchair due to mobility problems, autism, cerebral palsy, HIV/AIDS, muscular dystrophy, major depression, bipolar disorder, partial or complete amputations, post-traumatic stress disorder, obsessive-compulsive disorder and schizophrenia.

The new ADA rules mean that an employee who has been diagnosed with any of those conditions is presumed to be disabled and entitled to reasonable accommodation.

This may seem to be a common-sense approach to disabilities, but it has not always been so.

Under the old rules, each employee claiming a disability had to individually demonstrate that the condition limited one or more major life activities. A very large company might have 10 blind employees. Each blind employee would have to individually prove that blindness impaired their performance at one or more major life activities like reading, walking, using a phone book, using public transportation, cooking, shopping, personal grooming, etc.

An individualized assessment of whether a substantial limitation exists should still be done, according to the EEOC. However, the federal agency claims this “can be done very quickly and easily with respect to these types of impairments, and will consistently result in a finding of disability.”

Employers should note that the list of impairments is not exhaustive. Other conditions (more…)

Overtime for disabled workers is in the news again. Just last week the EEOC announced a settlement with United Airlines regarding overtime for employees on light duty under ADA, the Americans with Disabilities Act.

Now another case underscores the fact that employers must not discriminate in awarding overtime to disabled employees, even those on light duty.

The most recent case involves the U.S. Postal Service. Patricia Grana sued the postmaster general under the Rehabilitation Act, which prohibits federal employers and those receiving federal funds from discriminating against disabled workers. Grana challenged the policy of choosing employees on light duty last for overtime. Again, as in the United claim, Grana argued that such a policy had a disparate impact on disabled workers, who are more likely to be on light duty.

In Grana’s case, she was frequently on light duty due to a disability affecting one knee.

The U. S. Postal Service noted that this policy ended in 2004. However, Grana’s claim, which the court found valid, contended that the policy lasted until January 2006. Under the system introduced in January 2003, employees volunteered for overtime by putting their name on a list at (more…)

Employees on light duty or with physical restrictions must be permitted to work overtime on the same basis as other employees. In a recent settlement between United Airlines and the EEOC, the agency questioned an employer limiting overtime for employees who are on medical restrictions or limited to light duty.

Many employers would think that when a worker is under physical limitations, or has a disability, it would be obvious that the employee should not work overtime. However, the EEOC disagrees.

Under the ADA, or Americans with Disabilities Act, employees on light duty are entitled to work overtime if they are physically able to do so, the EEOC ruled.

In the case against United Airlines, employees on light duty were not permitted to work overtime, even when there was plenty of overtime work and it was being offered to employees who were not on light duty. The court ruled that this was a form of discrimination based on the employee’s physical disability under ADA.

United Airlines, based in Chicago, is one of the largest U.S. air carriers with nearly 3,000 flights per day to more than 200 domestic and international destinations from hubs in Los Angeles, San Francisco, Denver, Chicago and Washington, D.C.

The United Airlines case involved Samuel Chetcuti, a “storekeeper” working for the airline in San Francisco. The EEOC argued that the airline’s policy of not offering overtime to workers who were on light duty had a disparate effect on the income of disabled workers, because they were more likely to be on light duty.

For example, Chetcuti had epilepsy, which prevented him from operating heavy machinery and working at heights. However, it did not restrict the number of hours that he could work. But because Chetcuti was on light duty for his regular work schedule, he was barred from working lucrative overtime offered to others in the same job. The EEOC ruled that this was illegal employment discrimination based on disability.  

EEOC San Francisco Regional Attorney William R. Tamayo said, (more…)

Many employers struggle to understand the new EEOC definition of disability under the ADA, the Americans with Disabilities Act.

The ADAAA or ADA Amendments Act of 2008, significantly increases the number of employees who are considered disabled under the ADA. In fact, some estimates are that the ADAAA has tripled the number of “disabled” employees, simply by changing the definition of disabled.

In fact, according to SHRM, the Society for Human Resource Management, the majority of employees over the age of 50 may now be covered under ADA. That is because all that is required under the new regulations is that the individual have some deterioration in their body, and most individuals over 50 have such deterioration.

The new definition of disabled includes individuals (more…)